Filed 6/1/22 P. v. Carter CA2/1

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC TYRONE CARTER,

Defendant and Appellant.

 B311329

 (Los Angeles County

 Super. Ct. No. BA419941)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Eleanor J. Hunter, Judge. Remanded with 

directions.

John L. Staley, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven E. Mercer and Noah P. Hill, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
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In 2016, the trial court sentenced defendant and appellant 

Eric Tyrone Carter to 39 years 8 months in prison for convictions 

arising from his participation in a spree of armed robberies. 

We affirmed the convictions but, in light of the Legislature’s 

enactment of Senate Bill No. 620 (2017−2018 Reg. Sess.) (Senate 

Bill No. 620), which gave trial courts the discretion to strike 

firearm enhancements when imposing sentence, we remanded 

the case to allow the trial court to consider striking those 

enhancements from Carter’s sentence. The trial court declined 

to strike any enhancements. Carter now contends that we must 

remand the case once again in light of the recently enacted 

Senate Bill No. 567 (2021−2022 Reg. Sess.) (Senate Bill No. 567), 

which requires the court to apply a presumption in favor of 

selecting the lower term when imposing a determinate sentence 

on defendants who were younger than 26 years old when they 

committed their offense. The Attorney General agrees that 

Senate Bill No. 567 applies retroactively to Carter and requires 

a remand for resentencing, as do we.1

FACTS AND PROCEEDINGS BELOW

Carter and his codefendant Rasheen Childs committed

six armed robberies of convenience stores and gas stations in one

week between December 27, 2013 and January 2, 2014. Carter 

was 22 years old at the time of the offenses. A jury, in addition 

1 Carter also contends that we must remand the case to 

allow the court to consider striking his five-year enhancement 

under section 667, subdivision (a)(1) in light of Senate Bill 

No. 1393 (2017−2018 Reg. Sess.) (Senate Bill No. 1393), which 

gave the trial court the discretion to strike such enhancements. 

Because we remand the case for a full resentencing hearing in 

light of Senate Bill No. 567, we need not decide whether Senate 

Bill No. 1393 provides a separate ground for a resentencing 

hearing.
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to convicting Carter of seven counts of second degree robbery 

(Pen. Code,2 § 211), found true allegations that Carter personally 

used a firearm in the commission of three of the robberies 

(§ 12022.53, subd. (b)), as well as allegations that a principal had 

been armed in the four remaining counts. (§ 12022, subd. (a)(1).) 

The court found that Carter had a prior strike conviction (§§ 667, 

subds. (b)−(i), 1170.12), a prior serious felony conviction (§ 667, 

subd. (a)(1)), and one prison prior. (§ 667.5, subd. (b).)

The court imposed a total sentence of 39 years 8 months

in prison, calculated as follows: on one count of armed robbery, 

the middle term of three years, doubled to six years due to the 

prior strike, plus 10 additional years for the enhancement for 

personal use of a weapon, for a total of 16 years. (§ 12022.53, 

subd. (b).) On two additional counts of armed robbery, the

identical sentence described above, multiplied by one-third, 

for a term of 5 years 4 months each. On four additional counts, 

two years each, consisting of one-third the midterm of each 

offense, doubled. In addition, the court imposed a five-year 

term for the prior serious felony (§ 667, subd. (a)(1)), but did not 

impose a sentence for the prison prior enhancement under 

section 667.5, subdivision (b). The court ordered Carter to serve 

all the terms consecutively.

We remanded the case to allow the trial court to consider 

striking the firearm enhancements in light of Senate Bill No. 620. 

(People v. Carter et al. (Apr. 13, 2018, B275973) [nonpub. opn.].) 

At the resentencing hearing, the trial court decided not to strike 

the firearm enhancements. The court noted that Carter had been 

a “serial robber,” committing several robberies in the span of a 

few days, that he had been an active participant in the crimes,

2 Unless otherwise specified, subsequent statutory 

references are to the Penal Code.
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and that he had chosen “particularly vulnerable victims” in the 

convenience store clerks.

DISCUSSION

On January 1, 2022, while this appeal was pending, 

Senate Bill No. 567 became effective. The legislation enacted 

section 1170, subdivision (b)(6), which directs the court as 

follows when deciding whether to impose the upper, middle, 

or lower term in a determinate sentence: “[U]nless the 

court finds that the aggravating circumstances outweigh the 

mitigating circumstances that imposition of the lower term 

would be contrary to the interests of justice, the court shall 

order imposition of the lower term if any of the following was a 

contributing factor in the commission of the offense: [¶] . . . [¶]

(B) The person is a youth, or was a youth as defined under 

subdivision (b) of [s]ection 1016.7 at the time of the commission 

of the offense.” Section 1016.7, subdivision (b) defines a youth 

as “any person under 26 years of age on the date the offense was 

committed.” Before Senate Bill No. 567 became effective, the 

statute placed “the choice of the appropriate term . . . within the 

sound discretion of the court” (former § 1170, subd. (b)), with no 

presumption in favor of the lower term for youth offenders.

Both Carter and the Attorney General, agree, as do we,

that Carter is entitled to benefit from Senate Bill No. 567. 

When the Legislature enacts a statute that reduces or 

potentially reduces the punishment for an offense, we “assume, 

absent evidence to the contrary, that the Legislature intended 

[the] ‘. . . statute to apply to all defendants whose judgments 

are not yet final on the statute’s operative date.’ ” (People v. 

Lopez (2019) 42 Cal.App.5th 337, 341.) Senate Bill No. 567 

benefits young defendants by making it more likely that they 

will receive a reduced sentence for an offense, and there is no 
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indication that the Legislature intended to limit its application. 

Thus, the law applies retroactively to defendants like Carter 

whose sentences are not yet final. (People v. Flores (2022) 73 

Cal.App.5th 1032, 1039 (Flores).) 

One aspect of Carter’s sentence is affected by Senate 

Bill No. 567. On one count of armed robbery, identified in the

information as count 28, the court imposed the middle term

sentence of three years imprisonment, doubled to six years

because of Carter’s prior strike conviction. (See § 667, 

subd. (e)(1).) We must remand the case to the trial court to 

decide whether to reduce the sentence on this term in light 

of the new law. (Flores, supra, 73 Cal.App.5th at p. 1039.) 

The remainder of Carter’s sentence consisted of enhancements 

and subordinate terms for which the trial court did not choose 

an upper, middle, or lower term. Nevertheless, under the 

full resentencing rule, the court may reconsider all of its prior 

discretionary decisions when resentencing Carter. (See People v. 

Buycks (2018) 5 Cal.5th 857, 893.)
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DISPOSITION

The case is remanded to the trial court for a new 

sentencing hearing in conformance with this opinion. Upon 

completion of resentencing, the trial court is directed to prepare 

an amended abstract of judgment and to forward a certified 

copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.